R v H[2001] QCA 167

COURT OF APPEAL

McPHERSON JA

THOMAS JA

MACKENZIE J

BRISBANE 

..DATE 01/05/2001

JUDGMENT

McPHERSON JA:  Mr Justice Thomas will give judgment in this matter.

THOMAS JA:  This is a particularly depressing case.  The applicant was sentenced to 17 years' imprisonment for a variety of sexual offences committed between 1982 and the end of 1998.  Over that period he committed offences against three children, namely his own daughter between age about 5 to 15, his stepson between age 9 and 15, and a neighbour's female child aged 9 or 10.  The indictment contained 30 counts, and in addition the sentencing Court was asked to take into account seven further matters of incest. 

The applicant was 41 years old at the time of sentence.  He had no relevant criminal history. 

The offences included rape of the 10 year old neighbour, rape of his daughter over a number of years, maintaining a sexual relationship with his daughter, and sodomy of his stepson.  The 17 year sentence was imposed in respect of the count of maintaining.  There were concurrent sentences of 12 years for rape, 10 years for sodomy, and 10 years for incest.  However, it is to the totality of the criminal conduct that one must look in order to assess the validity of the operative sentence of 17 years.

Following violent conduct towards his wife in late 1998 the applicant voluntarily participated in counselling.  As a result of disclosures made by him to the counsellor his conduct was brought to the attention of the police.  In due course the applicant gave a lengthy record of interview and did not dispute any of the allegations that were made.  He was cooperative with police and pleaded guilty to an ex officio indictment, with the result that all complainants were spared the ordeal of Court attendance, along with other benefits that flow from early pleas of guilty. 

In addition a psychologist's report shows that he had himself been the subject of continuing sexual abuse from his grandfather which continued well into adulthood, and he is very much the product of a corrupt environment.  A psychiatric report describes him as suffering from an emotionally unstable borderline personality disorder, as a sufferer of depressive reaction, and as a man impaired by borderline intelligence.

Beyond what has already been stated, I cannot find any point of mitigation or any consideration which permits comprehension of these extraordinarily corrupt and protracted sexual depredations upon three children over a period of 16 or 17 years up to 1998.  The offences against the girl next door, with whose mother the applicant had had an affair, were an abuse of his child-minding role.  The rape was a forcible one, committed inside his vehicle when she was 10 years old.

She complained to her mother at the time but a decision was taken that the matter would be taken no further. 

Accordingly the applicant continued his sexual activities with members of his own family. 

The homosexual offences were committed upon his stepson from age 9 to 15.  Incidents of anal intercourse occurred on 15 occasions over that period.  There was also oral sex with the boy, including ejaculation by the applicant.

His conduct in relation to his daughter commenced when she was only 5 or 6 years old and continued through until her fifteenth birthday in October 1998.  She is an epileptic.  The offending commenced with touching, including digital penetration, and escalated to oral sex and ultimately sexual intercourse.  The applicant described it as "full-on relationship, kissing her all over, licking her out, fingering, and sexual intercourse on at least 10 occasions".

He did not have intercourse initially as he could not penetrate because "she was too tight".  He waited until she was older because he did not want to "ruin her inside".  His first sexual intercourse with her would seem to have been when she was about 9 years old.  The act was preceded by violence.  The complainant was regularly threatened, assaulted, and ridiculed during these sexual encounters.  In 1998 she bore a child to another man. 

Some idea of the attendant violence in the household can be gleaned from the following snippet from a statement given by the applicant's wife:

"It was sometime about the middle of last year, 1998, Jeslin and Tony were having an argument of some sort and Tony said he was going to kill Jeslin's pet rat.  It was a Saturday.  I remember Tony saying that he had to protect the house from the enemy.  I don't know what he meant by the enemy.  He used to go off for no reason.  He went and barricaded the driveway with the car to stop any cars coming in. 

He put an axe, a 10 pound sledge-hammer, a jemmy bar next to the front door, and a scythe and a lump of wood at the back door, and also had a big carving knife inside the house planted by the door.  I remember that Tony was sharpening the knives on the dining table.  He often did that when he wanted to threaten us.  He would sharpen the knives and threaten Jeslin and I with them. 

When he said to Jeslin that he was going to kill the pet rat I didn't know whether he would have killed it or not, but Jeslin ran into her bedroom and leaned against it from the inside in order to stop him getting in.  Then I saw Tony get a scythe which had a long handle and he hit Jeslin's bedroom door with the scythe three times.  The scythe went completely through the door and Jeslin was leaning against it on the other side.

When he left Jeslin came out of the bedroom to see where he had gone.  I told her to go next door and call the police.  We couldn't use our phone because Tony had pulled it off the wall and hidden it so we couldn't use it.  A few minutes later Tony came back to the house with a power saw, connected it inside the house, and then cut a big square hole in Jeslin's bedroom door. He said he did that so as Jeslin couldn't hide from him.  The police took a long time to come."

Some idea of the applicant's criminal conduct is conveyed by one of the later acts of rape on his daughter when she was 14 years old.  It was around New Year's Eve.  She got out of bed.  The applicant was abusing her and told her, "Sleep with me or I'll kill your mother."  She said she did not want to sleep with him.  He continued to hit her in the head and face until her mouth filled with blood.  He struck her with his fist in the chest and winded her.  As a result of that she had a hairline fracture to her ribs and a broken wrist.  He told her to lie on the bed, lie on the ground, he pulled her head down at the same time, forced her backwards, pulled her pants down, removed her underwear, told her to spread her legs.  He penetrated her, she told him to stop but he pushed harder.  She recalls feeling pain on the inside and outside of the vaginal area.  When he was penetrating her he told her that she was nothing but a dirty little tramp.  After he finished he left and she went and had a shower.  She told her mother that he had simply belted her rather than disclosing the sexual offence.

The offences span 16 years and involve three children.  There was incest of his daughter, sodomy of his step son and rape of a 10 year old girl in his care.  The circumstances are at the zenith of violation of trust and abuse of power. 

The victim impact statements are curiously flat.  The statement of his wife which is the one that expresses the greatest resentment seems to express greater disapproval of his domestic peculiarities than his sexual depredations.

His corruption by his grandfather who seems to be the person with whom he had his most loving relationship continued well into his adult years.  He felt obligated to meet his grandfather's sexual needs even after he was married until the death of the grandfather around 1993.  He described his offences against his step son with the comment, "It happened just like that.  I started playing with him just like my grandfather had done to me." 

A report from the psychiatrist Dr Fama describes the applicant as a plump cooperative Caucasian with a moustache and an unhappy air, mildly mentally retarded and virtually illiterate with a verbal IQ of 72 and a reading age of 6.9 years.  He further describes him as a troubled man of borderline intelligence.  Dr Fama observed that there would be likelihood of his re-offending were he to enter into a new relationship with a woman who had young or teenage children.  However, there is no history to suggest a risk of predatory sexual offending among the community at large.

The applicant told a psychologist, Mr Grantham, that he is happier in himself that the matter is now out in the open.  Mr Grantham described him as a suitable candidate for treatment although his report expresses no particular prognosis.

The main submissions for the applicant stem from his plea of guilty and his willingness to confess along with his own extremely unfortunate background.  The submission, on his behalf, is that in order to arrive at the present sentence of 17 years' imprisonment the learned Judge must have started at a level of at least 20 years if due credit was given to the cooperation and pleas of guilty.  That seems to be a reasonable submission.  The question is whether such a starting point is appropriate and more specifically whether the ending point of 17 years is manifestly excessive. 

I should mention in passing two particular submissions of Mr East for the applicant.  One is that the maintaining charge spanned a period both before and after 1 July 1997 when the serious violent offence provisions came into operation.  However, on the basis of this Court's decision in Ianculescu [2000] 2 Qd.R. 521, if part of the maintaining period occurs after 1 July 1997 the part 9A regime will apply to the offence taken as a whole.  In my view, by continuing to offend after that date the applicant became subject to that regime and it would not be appropriate for the Court to engage in a discounting exercise in respect of acts committed before 1 July 1997.  This, I think, is consistent with the approach also taken by the High Court in Siganto [1998] 194 C.L.R. 656.

Mr East's other submission concerns the sentences of 10 years imposed for sodomy.  These counts, charged as "unlawful carnal knowledge against the order of nature", were described in the indictment as committed "between a date unknown between 5 June 1984 and 6 June 1991".  The maximum penalty for the offences charged was 14 years between 1984 and 1989 but only seven years between 1989 and 1991.  All the counts from numbers 3 to 17 allege unlawful carnal knowledge against the order of nature.  It follows that the period to which the charges related covers five years when the maximum imprisonment was 14 years and about two years when the maximum imprisonment was seven years. 

No particularisation was sought below and the offences were described by the Crown Prosecutor as incidents of anal intercourse on 15 occasions over the time period.  Had the point been articulated below it may have been possible to justify sentences exceeding seven years for, at least, some of the offences but not for any that occurred after 1989.  The evidence shows that the first of these counts, count 3, was committed in the period when 14 years was the maximum sentence.  However, it does not show which, if any, were committed when a lesser maximum sentence was available. The point is of little importance in relation to the appropriate operative sentence to be imposed on the more serious counts of maintaining and of rape.  In the circumstances, rather than remit the matter for re-sentencing on the unnatural offences which are the subject of counts 3 to 17 I would set aside the sentences of 10 years' imprisonment on counts 4 to 17 and replace them with sentences of seven years' imprisonment concurrent with the other sentences.

A concern in the present case is the difficulty in knowing what effect to give to the essentially corrupt environment in which the applicant was brought up which he has carried forward into and around his own household.  Such a circumstance may attract some sympathy, but the need for deterrence and protection of society makes it difficult for a sentencing Court to offer leniency to persons who continue such a tradition.

The present offence of maintaining is, in my view, close to the worst category of such offences.  The maximum sentence for it, and for the rape counts, is life.  Whilst the commencing level of 20 years for the operative sentence of these matters in combination seems high I am not prepared to say that it is beyond the range open to the learned sentencing Judge as the commencing point in the sentencing exercise.

In reaching that conclusion I have adverted to Krieger CA 13 of 28 March 1991; R v. M ex parte Attorney-General CA 485 of 1998; R v. K ex parte Attorney-General CA 203 of 1993, 23 September 1993; Eather 1993 71 A.Crim.R. 305; S CA 316 of 1993, 7 October 1993; Proctor 1998 104 A.Crim.R. 220; and Edser CA 357 of 1986, 11 May 1987.

The present case is worse than Krieger where a sentence of 15 years was upheld.  That case involved one girl with whom the relationship commenced when she was seven years old.  It is possible to make comparisons with each of the above cases and in some of them the conduct in the present case might be described as overall less serious than some of those cases but is more serious than others.  It is an area where case by case comparison of quality and quantity of criminal behaviour is particularly difficult.  However, having regard to those cases, whilst I regard the commencing level of 20 years and the ultimate result of 17 years as being on the high side, I do not think that it is one with which this Court should interfere.

I would therefore grant leave to appeal, allow the appeal with respect to counts 4 to 17 and set aside the sentences of 10 years on those counts and replace those sentences with seven years.  In all other respects the appeal should be dismissed and the sentences should remain.

McPHERSON JA:  I agree.

MACKENZIE J: I agree.

McPHERSON JA:  The order on the application will be as

Mr Justice Thomas expressed it in his reasons.